This is where I think a lot of people are talking past this case. If you use the API surface area for the purposes of interoperability with existing software then you're covered and it's not infringement.
If you use the API surface area for your own software because you like the design, copying it is easier than coming up with something new, or you want to provide a familiar programming environment to developers then you're looking at infringing.
> If you use the API surface area for the purposes of interoperability with existing software then you're covered and it's not infringement.
Google did that: for compatibility with existing Java tooling, which is software.
Sure, Java apps aren't, unmodified, compatible with Android, but the compatibility makes tooling and intermediate libraries compatible, which is a functional, interoperability concern.
Google tried to argue for fair use under the idea of interoperability, but the (few) intentional differences from Java that prevent most Java programs from running unmodified on Android pretty much bombed that case...
Note that Google won both the jury trials (first on not violating copyright, and then on the violation being fair use after the first was overturned on CAFC).
In other words, Google won on most or all of its arguments at the jury trial level, and CAFC kept overturning all of its arguments. The sentiment I'm getting from the oral arguments is that SCOTUS is leaning much more towards "CAFC is off its rocker" here.
> With respect to Oracle’s claim for relief for copyright infringement, judgment is entered
in favor of Google and against Oracle except as follows: the rangeCheck code in TimSort.java
and ComparableTimSort.java, and the eight decompiled files (seven “Impl.java” files and one
“ACL” file),
And here's Oracle’s reply brief in the appeal; the relevant part on this issue is under the heading THERE IS NO “DE MINIMIS” DEFENSE TO COPYRIGHT INFRINGEMENT.
Distinction without a difference. My code is an interoperability layer between making a computer do a particular computation and other developers or composers of software.
Looking at an API and going "you could do this any other way than ours" is absolutely nothing more than a fundamental deconstruction of the entire field, at which point it's just Math. You're wasting everyone else's time. No one gets to copyright 2+2.
I'm not shoving in 3 API layers to represent "Math.max()".
Google is making this case, we'll see if the judges buy it. Just because porting Java apps to Android is easier because Google copied the API doesn't suddenly absolve them when it's Google's intention that will decide this case.
> when it's Google's intention that will decide this case.
Why do you presuppose to know the legal rule that the Supreme Court will articulate in its decision? I mean, you seem to presuppose that the Court will uphold the Federal Circuit on all contested questions of law and only reconsider whether the decision on the facts is reasonable, which is...mighty presumptuous.
It's quite conceivable that Google could win on a more fundamental ground, since the question of whether the API is even protected by copyright or unprotected as a functional element (which also does not turn on Google’s intent) is a love issue in the appeal. They win on that, and the Court doesn't have to touch anything else.
Even if they do need to address the fair use question because Google loses on copyright ability, the Court a lot will turn on the standard of review and the Seventh Amendment as to whether the Court is really probing Google's intent (de novo review) or merely probing whether any reasonable jury could have concluded that the use was fair, as the actual trial jury did here, preserving the right to jury trial. I would expect the latter, the Federal Circuit seems to have gone completely off the rails invoking de novo review to overturn the jury verdict.
That seems to be what a lot of legal folks are speculating. That an 8-person court will find essentially technical legal reasons to overturn the appeal and essentially punt on making a major copyright ruling one way or the other.
A ruling overturning the CAFC on the basis that fair use is a fact issue for the jury not subject to de novo review on appeal would still be a major (though not transformative, since outside of the CAFC in this case that seems to be how it has historically been treated) copyright decision.
And how will you use that API? If it is based on things like headers, you can no longer have a copy of that header to refer against. The compiler can no longer read that header into memory, as that's a copy.
The use of an API will be copyrightable too. Now you understand the depths of the disaster this will be.
